1. Constitutional Law: Search and
Seizure: Motions to Suppress: Appeal and Error. In
reviewing a trial court's ruling on a motion to suppress
based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the
trial court's findings for clear error, but whether those
facts trigger or violate Fourth Amendment protection is a
question of law that an appellate court reviews independently
of the trial court's determination.
2. Trial: Investigative Stops: Warrantless Searches:
Appeal and Error. The ultimate determinations of
reasonable suspicion to conduct an investigatory stop and
probable cause to perform a warrantless search are reviewed
de novo, and findings of fact are reviewed for clear error,
giving due weight to the inferences drawn from those facts by
the trial judge.
3. Motions to Suppress: Trial: Pretrial Procedure:
Appeal and Error. When a motion to suppress is
denied pretrial and again during trial on renewed objection,
an appellate court considers all the evidence, both from
trial and from the hearings on the motion to suppress.
4. Constitutional Law: Police Officers and Sheriffs:
Search and Seizure. A tier-one police-citizen
encounter involves the voluntary cooperation of the citizen
elicited through noncoercive questioning and does not involve
any restraint of liberty of the citizen, and such encounters
are outside the realm of Fourth Amendment protection.
5. Police Officers and Sheriffs: Search and
Seizure. A tier-two police-citizen encounter
involves a brief, nonintrusive detention during a frisk for
weapons or preliminary questioning.
6. Police Officers and Sheriffs: Search and Seizure:
Arrests. A tier-three police-citizen encounter
constitutes an arrest, which involves a highly intrusive or
lengthy search or detention.
[299 Neb. 807] 7. Constitutional
Law: Search and Seizure. A seizure in the Fourth
Amendment context occurs only if, in view of all the
circumstances surrounding the incident, a reasonable person
would have believed that he or she was not free to leave.
8. Criminal Law: Warrantless Searches: Probable
Cause. Probable cause to support a warrantless
arrest exists only if law enforcement has knowledge at the
time of the arrest, based on information that is reasonably
trustworthy under the circumstances, that would cause a
reasonably cautious person to believe that a suspect has
committed or is committing a crime. Probable cause is a
flexible, commonsense standard that depends on the totality
of the circumstances.
9. Probable Cause: Appeal and Error. An
appellate court determines whether probable cause existed
under an objective standard of reasonableness, given the
known facts and circumstances.
10. Police Officers and Sheriffs: Probable
Cause. In assessing probable cause, an officer's
relevant inquiry is not whether particular conduct is
innocent or guilty, but the degree of suspicion that attaches
to particular types of noncriminal acts.
Petition for further review from the Court of Appeals.
Inbody, Pirtle, and Riedmann, Judges, on appeal thereto from
the District Court for Lancaster County, Robert R. Otte,
Judge. Judgment of Court of Appeals reversed, and cause
remanded with directions.
Matthew K. Kosmicki, of Brennan & Nielsen Law Offices,
PC, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
Heavican, C.J., Miller-Lerman, Cassel, and Funke, JJ., and
Derr and Urbom, District Judges.
granted the State's petition seeking further review of
the decision of the Nebraska Court of Appeals, remanding the
cause with directions to vacate Kirk A. Botts' conviction
and to dismiss the charge against him. We reverse the
decision of the Court of Appeals and remand the cause with
Neb. 808] FACTUAL BACKGROUND
was charged with possession of a deadly weapon by a
prohibited person under Neb. Rev. Stat. § 28-1206
(Reissue 2016). Botts' motion to suppress was denied.
Following a jury trial, Botts was convicted and eventually
sentenced to 1 year's imprisonment and 1 year of
appealed to the Court of Appeals, assigning that the district
court erred in denying his motion to suppress. The Court of
Appeals agreed, concluding there was not probable cause to
arrest Botts and that the inventory search of his vehicle
must be suppressed.
Leading to Arrest and Search.
Court of Appeals set forth the following facts in its
Officer Jason Drager of the Lincoln Police Department
testified that on March 10, 2016, around 2:30 a.m., he was
driving back to the police station in his police cruiser.
While driving, he saw a vehicle on a side street that was not
moving and was partially blocking the roadway. The vehicle
was situated at an angle, with the front end by the curb and
the back end blocking part of the street. Drager thought
maybe there had been an accident. He turned down the street
and saw an individual standing by the driver's side of
the vehicle. Drager turned on his cruiser's overhead
lights, parked his cruiser behind the vehicle, and contacted
the individual, later identified as Botts. He asked Botts
"what was wrong, " and Botts initially told Drager
"to mind [his] own business." When Drager asked
Botts again about what had happened, Botts told him "he
was out of gas and was trying to push the vehicle to the side
of the road." Drager testified that he did not recall
Botts' saying that he drove the vehicle there. Botts
asked Drager if he could help him, and Drager told him he
could not help, based on Lincoln Police Department policy.
[299 Neb. 809] Drager testified that he decided he should
remain at the location because Botts' vehicle was
blocking the roadway and could cause an accident. Drager then
stood back by his cruiser and watched Botts push the vehicle
back and forth. Drager stated that Botts became
"verbally abusive" toward him after he said he
could not help him, so Drager decided to ask other officers
to come to the location "for safety purposes."
Three other officers responded.
One of the officers who responded, Officer Phillip Tran,
advised Drager that he had stopped Botts a couple hours
earlier that night for traffic violations. Drager testified
that Tran told him he had detected an odor of alcohol on
Botts at the time of the earlier stop. Based on the
information from Tran, Drager decided to approach Botts and
ask him if he had been drinking. Drager testified that when
he asked Botts if he had been drinking, Botts became angry,
started yelling, and started backing up away from him.
Drager testified that Botts' demeanor led him to believe
Botts was under the influence of "some kind of alcohol
or drug." However, Drager testified that he did not
believe alcohol or drugs were affecting Botts' ability to
answer questions. Drager did not recall Botts' stating
that he had been drinking.
Drager testified that Botts backed up to the other side of
the street and stopped with his back against a light pole.
When he was backing up, he was not coming at the officers and
was not making threats. The four officers surrounded Botts by
the light pole. Botts started yelling "something along
the line of shoot me, shoot me." Drager testified that
Officer David Lopez, one of the officers at the scene, pulled
out his Taser for safety purposes and to try to get Botts to
comply with their request to put his hands behind his back.
He eventually did so and was handcuffed and placed in the
back of Drager's cruiser.
[299 Neb. 810] Drager testified that the officers were
telling Botts to put his hands behind his back for their
safety and Botts:safety. Drager stated that he was
concerned for his safety ...